Michigan v. Bryant is the latest in a series of post-Crawford cases seeking to define the contours between testimonial and non-testimonial evidence.

Throughout the entire case, Justice Scalia seemed to want to defend his baby, Crawford. Scalia was so insistent on this venerable precedent that he repeatedly suggested that Crawford would resolve this case. In one situation, Justice Kennedy was not so persuaded:

JUSTICE SCALIA: I think your answer, counsel, is that we decided that in Crawford from which Justice Breyer dissented.

JUSTICE BREYER: Suppose I think he did it.

JUSTICE KENNEDY: Perhaps there is another answer that I would like to hear.

JUSTICE BREYER: I would like to hear your answer because I don’t think we decided it in Crawford.

CHIEF JUSTICE ROBERTS: Now is a good time to try to jump in, I think.

(Laughter.)

The master illusionist jumped in there with a joke to lighten the mood.

Justice Breyer, who joined Crawford, but dissented in Melendez-Dias, seemed to have his misgivings over this precedent:

JUSTICE SCALIA: That’s what we said in Crawford, isn’t it?

JUSTICE BREYER: Of course what I’m looking for now is whether there is any sense to that? What is the constitutional rationale? I agree on joining Crawford, but I have to admit to you I have had many second thoughts when I’ve seen how far it has extended as I have written it.

Justice Scalia returned to this schism with Justice Brief, briefly confusing Ohio v. Roberts with US v. Reynolds:

JUSTICE SCALIA: I guess it depends on what you mean, by in the past, as Justice Breyer put it. Undoubtedly under the regime of United States v. Reynolds which was what, 25 years old -when -MR.

VAN HOEK: Roberts.

JUSTICE SCALIA: Roberts, I’m sorry.

MR. VAN HOEK: Roberts.

JUSTICE SCALIA: Roberts. Reynolds was the Mormon case — which was about 25 years old or so when Crawford was decided, yes, hearsay was your protection, and that was it. But if by — what you had mean is in the past, Crawford examined the past and its conclusion as to what the past said is quite different from what Justice Breyer now says, although he joined Crawford.

Breyer repeated that he did not forsee the scope of Crawford:

JUSTICE BREYER: Many — I mean, like many cases there is language that can take us far afield from the subject matter before us. And I will admit that I did not foresee the scope of Crawford. So I’m really asking about that scope, and in particular, whether looking to the past or to reason, or to whatever you want, there is a good reason for keeping out the testimony of say a coconfederate, a coconspirator -where it was elicited, not with intent to introduce it into the courtroom, but it was elicited in the course of an ordinary investigation of a crime.

Justice Alito also makes an originalism at the right time error (the same mistake he made in McDonald) but inquiring what the 6th amendment meant at the time the 6th amendment was adopted.

JUSTICE ALITO: I understand that, but assume for the sake of argument that it would be consistent with Crawford if it were a dying declaration, which the Court has suggested. What does that tell you about the understanding of the scope of the confrontation right at the time when the Sixth Amendment was adopted? Because a dying declaration may very well be testimonial under — is likely to be testimonial under the Crawford test.

Because this is a issue from Michigan, the relevant inquiry, if we are all originalists now, is what was the understanding of the confrontation clause at the time of the 14th amendment. Meanwhile, Justice Breyer referenced the trial of Sir Walter Raeligh no less than 4 times.

Justice Kagan is recused on this case. Therefore, 4 votes to affirm will affirm. I think Scalia, Thomas, Ginsburg, and maybe Alito are on board. The Chief may be on board, as his objections in Melendez-Diaz don’t seem to apply to the facts of this case. Souter is in dissent. Not sure about Sotomayor. So possibly a 5-3, or 6-2 final vote?